Going, Going, Gone!

Three Strikes Law

If some "experts" are to be believed, a terrible injustice is about to be foisted upon vulnerable victims. Criminals are going to be victimised by being inflicted with an 11,000 percent increase in their prison sentences. It has to be the case because the NZ Herald has told us so, via a febrile headline.

The government is about to pass a "three strikes" sentencing law. It will result, say the critics, in horrendous injustices. The idea is that if you are a repeat offender, committing multiple criminal acts, your sentences will become much longer. Now, there are three kinds of objections to this proposal. The first has to do with whether successive crimes receiving a progressive harsher penalty is intrinsically unjust. The second had to do with "unusual case" objections that result in manifest injustices. The third objection rests on unintentional consequences. We will deal with each in turn.

The burden of proof for those who argue that it is intrinsically unjust to punish successive crimes with harsher penalties rests firmly upon those who make the assertion. If a criminal repeats his offending after being punished for a crime, then to the second or subsequent crime, the evils of stubbornness and contumacy can be added to the subsequent acts. The subsequent crimes therefore become more blameworthy, bear greater guilt, and must be punished more severely. To argue against this would undermine the very notion of a scale of punishments due to the varied wickedness and seriousness of crimes.

The law of Moses recognises this principle when it codifies a crime of habitual criminality and attributes the most extreme sanctions against it. (Deuteronomy 21: 18--21)

Unusual case objections point to prima facie cases of injustice occurring under "three strikes laws", such as where a succession of minor offences can result in life imprisonment for the third offence, albeit a petty infraction. Most of the sensational cases trumpeted in the Herald represent this second objection. Clearly this would be a concern.

However, to our mind, the New Zealand three strikes law overcomes these weaknesses--which unfortunately the Herald article neglected to mention, in its "never let the facts get in the way of a salacious story" kind of journalism.

In New Zealand, the three strikes law will apply to a stipulated set of crimes only--namely, those that are at the extreme end of offending. They will not apply to relatively minor criminal acts. According to Rodney Hide, leader of the ACT Party which has been the driving force behind the change:

The strike offences are listed. As a general rule the list comprises all the major violent and sexual offences that have a maximum penalty of seven years or more.

In other words, a petty criminal can be caught shoplifting three times, and he will not fall under the three strikes law. This approach avoids the risk of petty criminal acts being given extreme, and therefore harsh, sentences.

Moreover, the New Zealand three strikes law escalates the punishment for "strike offences" in a carefully graduated way, which means that a violent criminal will eventually suffer the maximum penalty laid down in law for that crime. (Note that this does not mean, as some assume, that the third strike will necessarily result in imprisonment for life.)

"An offender's first conviction counts as Strike One. They will serve the sentence the judge sets and be eligible for parole. A conviction for a second strike offence will count as Strike Two. They will serve the full judge-given sentence - no parole. Subsequent offending will count as Strike Three - these offenders will serve the maximum sentence for their crime with no parole. The judge sentencing a Strike Three offender will have no option but to sentence the offender to the 'max' unless it would be 'manifestly unjust' to do so.

Note also that there is a discretionary override of "manifest injustice" which will be applied as well. It seems to us that the New Zealand version of the three strikes law has been carefully crafted and is manifestly just.

The third objection warns of unintended consequences. It is argued that it will fill the prisons. This is a non-sequitur. Prison space is non-finite. More prisons can be built. It is argued that criminals who are going to have serve the maximum sentence under law without parole will become more violent, because the carrot of early release is not available to them. This also is not an argument against the rectitude or justice of the three strikes law. If it is a risk at all it can be mitigated by more effective custodial practice.

Whether the current paradigm of serving time in a prison is the right way to punish and rehabilitate criminals is not at issue here. That is a different debate. The issue is whether the New Zealand "three strikes law" is inherently cruel, harsh, or unjust, or will result in unjust outcomes, or pernicious unintended effects.

We are pleased to say that none of these objections are sustainable. They either eviscerate the concept of culpability and degrees of criminality, or they misrepresent the new law through alarmist straw-man objections, or they raise irrelevancies.

This new three strikes law is change we can genuinely believe in.